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Michigan Court of Appeals Holds that Black Ice is not "Open and Obvious" as a Matter of Law

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Joseph E. Kozely & Laura J. Garlinghouse
Foster Swift Property Insurance/Premises E-News
November 11, 2008

In a published decision issued on November 6, 2008, the Michigan Court of Appeals denied summary disposition for Defendant in a premises liability case, holding without dissent that it was a question of fact whether the "black ice" on which Plaintiff slipped and fell was an open and obvious danger.  Slaughter v Blarney Castle Oil Co (Docket No. 283266).

Late in the evening on December 31, 2004, Plaintiff and her husband visited Defendant's gas station.  They parked their truck in Defendant's parking lot, which was paved with black asphalt.  As she exited her truck, Plaintiff stepped onto the pavement, slipped on black ice, and injured her back.  Plaintiff denied seeing the black ice.

Plaintiff filed suit against Defendant, arguing that she was an invitee and that Defendant had breached its duty of care to her.  Defendant moved for summary disposition, arguing that it did not have a duty to protect Plaintiff from the black ice because black ice is open and obvious as a matter of law.  The trial court denied Defendant's motion and held that it was a question of fact whether the black ice was open and obvious.

The Court of Appeals affirmed. The Court reviewed cases in which icy and snowy conditions were held to be open and obvious danger and recognized the apparent trend by which Michigan courts have imputed knowledge of dangerous conditions to plaintiffs.  The Court distinguished those cases, however, as involving snow, snow-covered ice, or visible ice - not black ice without snow.

The question was: Would an average user with ordinary intelligence be able to discover the black ice upon casual inspection, absent the presence of snow?  The Court reasoned that black ice is, by definition, invisible or nearly invisible, and thus was "inherently inconsistent with the open and obvious doctrine."

Since there was no snow on the ground or any evidence that the black ice was visible at the time of Plaintiff's fall, the Court held that it could not determine as a matter of law that the black ice was open and obvious.

This case may represent a shift away from characterizing hazards as open and obvious as a matter of law and toward finding questions of fact to preclude summary disposition. It is unknown at this time whether an application will be filed for leave to appeal to the Michigan Supreme Court.  At least for now, this case is binding precedent.